Tuesday, March 28, 2006

Brownback, Hamdan, and lying to the public

The Supreme Court is hearing an appeal today to resolve the legal status of the military commissions which are determining who can be held at Guantanamo. Before it can address that issue, the Court has to decide whether Congress passed a law removing their ability to hear the appeal.

At the time the law in question passed, no one seemed to have said anything about it applying retroactively. It was part of a deal which clarified that the United States doesn't allow torture, but it also removed certain habeas corpus rights from non-citizens. Authors of the court-stripping language filed an amicus brief with the court insisting that they intended the language to be retroactive, and cited statements they made on the floor in support of that claim.

The problem is, they didn't actually make those statements, they just inserted a script for such a debate into the Congressional Record. Inserting text into the Congressional Record is a common practice, and there's nothing necessarily wrong with it. The problem is lying about whether Congress knew that they thought this way.

At another [point], Sen. Sam Brownback, R-Kan., appears to interject a question. "If I might interrupt," he begins.

I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did. Nor did Kyl or Graham's press reps.

If I might interrupt, I would like to add that I share the understanding of my colleagues from Arizona and South Carolina. I supported the McCain amendments--I think that it is important to ensure that detainees are treated humanely. But I would not support allowing those detainees to file lawsuits against our armed forces, and I wasn't aware that anyone had even suggested that the McCain amendments allow detainees to file Bivens-type actions.

I'm trying to contact Senator Brownback's office for comment. Specifically whether he knew that this statement would be presented in legal brief as evidence of debate that took place on the Senate floor, rather than simply as a venue for putting his feelings on the record. Since only Senators Graham, Kyl and Brownback speak in the 8 pages in question, I'm also curious why Senator Brownback wasn't a part of the amicus brief built around that "debate."